Jacksonville man spent nine months in jail for a crime he didn't commit

Dana Treen

Tuesday

Nov 26, 2013 at 5:45 AM

At 6 feet tall and heavily tattooed, Joshua Angel has a distinctive presence.

A man who robbed Michael Horne in his wheelchair on Sept. 5, 2012, was about 8 inches shorter, had less ink in his skin and bore only a vague resemblance to the 26-year-old Angel.

But that night, Jacksonville police rousted Angel from a crowd at a BP station on Philips Highway and stood him in their headlights for Horne to look over as a possible suspect in the case.

SEE ALSO: Read the State of Florida vs. Joshua James Angel disposition statement

Two men stuck a toy gun to Horne's neck as he was going home from a nearby Gate station earlier that evening. One was older and heavier, and the other, who officers were comparing to Angel, was about 5-foot-4, Horne said, with a single tattoo on his right arm and a patch of whiskers below his lip. He was wearing flip flops.

Angel wore sneakers.

The differences weren't enough to keep Angel out of jail. And it wasn't enough to free him when prosecutors showed Horne a surveillance clip from the Gate station showing the young attacker holding the door for him just before the robbery.

"He had a tattoo on his arm but not on his neck," Horne said in a recent interview. "The guy they arrested, he had tattoos all on his stomach, his arms."

And on his neck. And a tear drop beneath each eye.

Angel spent nine months in jail on a robbery charge for a crime he didn't commit.

It was not until June that the State Attorney's Office dropped the case.

In a court filing provided when the Times-Union asked for interviews with two prosecutors in the case, the State Attorney's Office said the charge was dropped based on Horne being the only witness able to describe the suspects and no other evidence linked Angel. There were difficulties reconciling Angel's appearance with Horne's description and the Gate surveillance clip, the statement said.

Jacksonville Sheriff's Office spokeswoman Lauri-Ellen Smith said the agency would not comment on the case due to the potential for litigation.

The path to her son's freedom was a long and draining fight, said Kathy Sarikaya.

"It still kind of haunts us," she said. "... It was very frightening, but at the same time it was very wrong."

After Angel's arrest, Sarikaya knew the outcome could be devastating. He already had a criminal record so he faced 30 years in prison. But those earlier crimes didn't involve robbery, she said.

Defense attorney Whitney Lonker and Sarikaya found a forensics expert to examine the surveillance footage and review the show-up procedure used by police. They gave the results to the State Attorney's Office, Lonker said.

They wanted to show Angel didn't match the description Horne gave to police.

"The case is hinging on identification," Lonker recalled thinking.

LEFT IN POLICE HANDS

Angel's arrest came the night Horne, 38, who has cerebral palsy and uses a motorized wheelchair, was robbed after going to a Gate on Emerson Street to change a $20 bill.

The men came up behind him as he was going home and stuck the gun to his neck. He struggled with them to keep the money and fell from the chair, but he got a good look at the younger man and remembered both from the store.

In the confrontation Horne also ended up with the gun, which turned out to be an air pistol. Tests never linked Angel to the weapon.

Reaching his apartment, a bruised and scraped Horne called police and described the attackers. One had held the door for him at the store, he said.

The second attacker was about 50 and sitting in a truck when Horne saw him.

Police searched near the apartment building and found Angel at another gas station, a BP, in what they termed a drug area about a half mile from the Gate. "They said, 'We didn't get the one in the truck but we got one of them,' " Horne said.

When he was taken to the BP, Horne agreed with what the police suggested - that this was the guy. He saw the side of Angel's face and a shirt and shorts that seemed to match his attacker's. Horne wears glasses but wasn't that night, he said.

"I left it in the police's hands to arrest the right one and do their job to the best of their ability," he told the Times-Union.

Bill White, former public defender for the 4th Judicial Circuit, said for police to rely on the show-up to pin Angel as a robber was unprofessional.

"That's not a good identification, that's a terrible identification," he said. "It's the worst. You only have to go back as far as Brenton Butler to realize that."

In that high-profile Jacksonville case, Butler was a 15-year-old picked up by police in May 2000 and accused of fatally shooting a Georgia tourist at a Southside motel after the victim's husband identified him in a show-up. Butler was acquitted and another man later arrested and convicted. The case became the subject of an Oscar-winning documentary and led to procedural changes at the Sheriff's Office.

"To me this is a red flag," White said. "That first prosecutor should have recognized this."

Police make arrests but it is up to prosecutors to double-check those efforts to be sure the case is provable.

"If you have the state attorney and the police rubber stamping each other, the system is broken," he said.

ESSENTIAL EVIDENCE

White said the case reminds him of a study several years ago to determine why Jacksonville had a high number of misdemeanor defendants in jail.

"I think it is because we have a culture in Jacksonville of arresting people, putting them in jail then challenging them and their attorneys to prove them innocent," he said.

In a November deposition, Lonker pressed for Horne to be allowed to see the Gate surveillance clip. She was unaware that prosecutors had shown it to him earlier when Angel's defense was being handled by another attorney, she said.

She wanted Horne - who had never seen a photo of Angel - to compare images of the two men.

But at the deposition, Assistant State Attorney Brittany Mauerberger objected and argued Lonker was trying to create new evidence, according to court records. The judge said bringing in a new angle could taint the case and denied Lonker's request.

Though she couldn't use that comparison, Lonker was able to rely on something Horne told investigators.

"He had previously stated, 'The guy in the video who is holding the door for me is the guy who robbed me,' " Lonker said. "It is an essential fact in the case. It is the main fact."

The night Angel was arrested, he was charged with armed robbery after an interview with detectives in which he kicked furniture, was belligerent and profane but asserted his innocence.

"They were dead set on 'We got this guy' and that was all they cared about," Angel told the Times-Union.

The next day, a judge agreed with the police and found probable cause to hold Angel on the charge.

"The jail is like a box," Angel said. "The detectives don't come to talk to you. You don't really get another chance to tell your story. I was depressed pretty much the whole time I was there."

On Oct. 2 Angel pleaded not guilty and the state filed an intent to classify him as an habitual offender. That meant his case would go to repeat offenders court and face stiffer sentencing.

TELL THE TRUTH

In January, Michael Knox, a forensic consultant, was asked by the defense attorney to look at the surveillance video and the police show-up.

A former sheriff's officer and crime scene investigator who has a degree in mechanical engineering, Knox reviewed the video, analyzing distances and heights, and determined the man who held the door for Horne was about 5-foot-4. His tattoos are also distinctly different than Angel's, Knox said.

"What really sticks out to me is in his first deposition Mr. Horne says he really couldn't identify him," Knox said of the show-up with Angel.

In the report, Knox said eyewitness identifications are susceptible to bias.

"Officers should never suggest any opinion one way or the other that the person to be viewed is in fact the perpetrator," he wrote. "In fact, officers should make a point of telling the witness that the person may not be the perpetrator."

Perhaps Angel should have been freed from jail while investigators looked more deeply at the evidence, he said.

"The police and prosecutors should have really looked at these things," he said.

Soon after Assistant State Attorney Yiolanta Jones was assigned to the case, Horne met with her and was shown a photo of Angel to compare with a tattoo and other features he described to police the night he was robbed.

"She told me go ahead and tell the truth," Horne said. "So when I looked at the picture and I remembered where the tattoo was, the only thing I said was, 'That's not it. It's not him.' "

It was June 5. Other than the BP show-up, it was the first time he had a look at Angel.

Angel was released June 6.

No one else has been charged with the robbery.

Dana Treen: (904) 359-4091

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